1. JUDGMENT ALI MUHAMMAD BALOCH, J.- This is an application under section 491 Cr.P.C, filed by Mst.
2. Nasira Akhtar. The relevant facts of the case, for the purpose of decision of this application, are that the marriage of the applicant Mst. Nasim Akhtar was solemnized with respondent No. 5 Ashiq Hussain at the instance of the father of the applicant. Ashiq Hussain is the nephew of the father of the applicant. After the marriage the parties were not living happy life. Ashiq Hussain brought the applicant from her village in Bahawalnagar to Karachi, where Ashiq Hussain started working but the applicant was not happy on account of immoral character of the respondent No. 5. The applicant claims that she started earning her on livelihood in order to support her children i.e. Two sons and a daughter.
3. The eldest of the children is the daughter by name Gudia Tabassum aged 5 years and the applicant claims that she was maintaining her by working in different households and the children were in her lawful custody. The applicant claimed that the respondent No. 5 Ashiq Hussain had abandoned her and on 1.4,1994 when she had gone to attend her usual work leaving behind the children at the home, the relations of respondent No. 5 came to the house and took away with themselves the eldest of the children Gudia Tabassum. On returning back to the house applicant was informed by her 4 years old son Asif about the fact that Gudia Tabassum had been taken away by the relations of respondent No. 5. The applicant therefore made an application to the Hon'ble Chief Justice of this Court, who referred her to a counsel for legal assistance on humanitarian grounds and accordingly constitutional petition No. 1155/94 seeking restoration of the case against the respondent No. 1 (the father of the applicant) was filed. This petition was dismissed for non-prosecution on 1.8.94. The applicant also went to Bahawalnagar where she learnt that the daughter of the applicant was there in the house of her father. She returned back and filed this application on which rule nisi was issued for the production of the minor detenue.
4. Detenue was subsequently produced in Court by the respondent No. 5, who is the father of the minor and he also filed his counter-affidavit in which he claimed that he himself had brought the minor to Karachi in order to apprise the Court of the true facts. He stated that the applicant has deserted him and the minor daughter and that she left the house without his permission. He denied the allegation of the applicant against her on father (the uncle of the respondent No. 5).
5. Mr. Sabihuddin Ahmed, learned counsel representing the applicant, has advanced arguments in support of the' claim of the applicant and has urged the Court to entrust the temporary custody of the detenue Gudia Tabassum to the applicant, her mother while the learned counsel for the respondents Mr. Sh. Azizur Rehman's, has vehemently opposed the prayer of the applicant stating that the respondent No. 5 is the father of the minor detenue and is the natural guardian and that the custody may not be taken away from him.
2. I have given due consideration to all the facts of the case as well as the arguments advanced at the bar. There is no doubt that father is a natural guardian of the minors and he has a right to keep the custody with himself but in this case the circumstances show that the minor girl was living with the mother when she was removed from the custody of the mother without recourse to any legal procedure, hence the custody of the minor detenue with the father cannot be said ' to be legal. The custody of the minor with the father being illegal and the minor having been brought to this Court in response to rule nisi, the duty of the Court starts to find out as to what should be the order in respect of the custody of the minor. NO doubt Guardian & Wards Act of 1890 regulates the custody of the minors and section 491 Cr.P.C, is quite independent, and empowers the Court to issue the writ of habeas carpus in appropriate cases, irrespective of the provisions of the Guardian & Wards Act, 1890. The cases decided so far in respect of the matter akin to the dispute in the present case are numerous and the careful study of the same lays down a balance between the use of section 491 Cr.P.C, and the provisions of Guardian & Wards Act, 1890. Ordinarily the issue as to guardianship should be left to be decided by the Court under the Guardian & Wards Act but in matters pertaining to the custody of the minors of tender age, the High Court has got jurisdiction under section 491 Cr.P.C., which remedy is definitely more efficacious, speedy and) appropriate and has been exercised in many cases without prejudice to the rights of the parties to have the matter finally adjudicated upon by a guardian judge. Consequently, in this case I am inclined to pass the order that the custody of the minor Gudia Tabassum be handed over to the applicant Nasim Akhtar by the respondent No. 5 Ashiq Hussain for the reason that age of minor Gudia Tabassum is 5 years and it is well settled principle of law that a Muslim female minor under the right of hizanat should live with her mother upto the age of her puberty. Among the cases giving support to this decision of mine, I rely upon the recent decision of this Court in the case of Shabana Niazi Vs. Muhammad Khalilur Rehman's & two others, decided by my learned brother Justice Haider Ali Pirzada, as he then was, reported in 1994 P.Cr.LJ. 715. In this case, the cases decided on the point involved have also been discussed and taking support from the case of Iffat Mir Vs. Mobeen Qasim Mir, -reported in 1991 P.Cr.L.J. 2372, it was held that it is well settled law that ordinarily the dispute as to the guardianship should be decided by the Court under the Guardian & Wards Act, as that is the ordinary remedy for deciding such disputes but in exceptional cases High Court can interfair to order restoration of custody which has been disturbed illegally or improperly. In the case of Iffat Mir Vs. Mobeen Qasim Mir, it was observed as under:- "Respondent no doubt is the natural guardian of the minor being his father but he cannot hold and retain his custody forcibly and against the wishes of the petitioner who in law is entitled to the custody of the minor or without obtaining proper orders for the custody of the minor from a Court of competent jurisdiction. It is not the case of the troponymy respondent that he has obtained any such order. In fact he has not even moved the Guardian Judge/Family-Court for securing the custody of the minor Salman Mir though he is stated to have made an application under section 25 of the Guardians and Wards Act for the custody of the other child i.e. Zeeshan Mir. He is evidently holding the custody of the minor against the wishes of the petitioner. In the circumstances, his custody, prima facie, appears to be illegal."
6. It was further observed in this case that: "Even if it be assumed for the sake of arguments that the respondent's custody of the minor child was not illegal or improper, yet since the minor has been brought before this Court, he can be dealt with according to law under-section 491(l)(a), Cr.P.C, which provides: Any High Court may, whenever it thinks fit, direct (a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law."
7. Similarly, in the case of Muhammad Rafiq Vs. Muhammad Ghafoor, reported in P.L.D. 1972 S.C. 6, it was observed:- "The High Court has two-fold jurisdiction under this section: (i) to deal with a person within its appellate criminal jurisdiction according to law, and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person."
8. It was further observed:- "If the person is a minor, the Court may take over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not."
3. Under the provisions of Muslim Law, the right of a mother to hold custody of her children under 'hizanat' is well-known and the mother has a right to keep the custody of the minor girl up to the age of her puberty. The father is at the same time not debarred from proving before the Court that the mother has - lost her right of hizanat and then the custody of the minor can also be entrusted to the father in that case. This is left open to the parties to establish whether the welfare of the minor lies in remaining with the mother or with the father. The parties are at liberty to get such declaration or orders from the competent Courts. However, till such regulatory orders are passed by the Guardian & Wards Court, this Court is of the opinion that mother, the applicant, should have the custody of the minor Gudia Tabassum. The learned counsel for the respondent No. 4 has shown his apprehension that the applicant may not be able to look after the minor properly as she is a woman while the respondent No. 5 is in a better position than the applicant to look after the minor.
9. This question lies within the jurisdiction of the Guardian Court to decide as it relates to the welfare of the minor. Besides, the applicant as well as the respondent No. 5 both appear to be belonging to a poor working class of our Society. The applicant appears to be earning her livelihood along with her children by working as a maid while the respondent is also a person working with his on hands as a labourer, therefore, it cannot be decided in these proceedings as to who is better suited to look after the minor's welfare. Therefore, this question is left open to be decided by the Guardian Court. The result is that this Cr. Misc. Application is allowed and the custody of the minor Gudia Tabassum is awarded to the applicant.